GUIDE TO PREPARING AN APPEAL - West Virginia Judiciary

1 GUIDE TO PREPARING AN APPEAL from a Circuit Court Decision using the REVISED RULES OF APPELLATE PROCEDURE Prepared by: Rory Perry, Clerk of Court December 2010 GUIDE TO PREPARING AN APPEAL FROM A CIRCUIT COURT DECISION II TABLE OF CONTENTS INTRODUCTION .. 1 INITATING AN APPEAL HIGHLIGHTS OF THE NEW PROCESS .. 1 PREPARING AND FILING THE NOTICE OF APPEAL .. 5 Is a Notice of APPEAL Required? .. 5 When Is The Notice Of APPEAL Due And Where Is It Filed? .. 5 How Do I Prepare To File The Notice Of APPEAL ? .. 6 How Do I Complete The Notice Of APPEAL ? .. 8 How Do I File and Serve The Notice Of APPEAL ? .. 11 SCHEDULING ORDERS .. 12 ASSEMBLING THE RECORD ON APPEAL .. 13 The Record On APPEAL Is A Subset Of The Circuit Court Record.. 13 What Are The Methods Of Providing The Record On APPEAL ? .. 14 Who Has Responsibility To Provide The Record On APPEAL ? .. 15 How Do I Obtain The Documents For An Appendix? .. 15 What If The Parties Don't Agree On The Contents Of The Appendix?

2 16 Can I Use Documents From My Litigation File? .. 16 How Is An Appendix Formatted? .. 17 What If I Need To Proceed On A Designated Record? .. 18 How Is a Designated Record Assembled? .. 19 PERFECTING THE APPEAL AND BRIEFING .. 19 Highlights Of The New Briefing Process .. 19 Perfecting The APPEAL .. 20 Petitioner's Brief .. 21 Respondent's Brief .. 23 Reply Brief .. 24 What Happens Next? .. 24 GUIDE TO PREPARING AN APPEAL FROM A CIRCUIT COURT DECISION 1 INTRODUCTION In 2010, the Supreme Court of Appeals of west Virginia finalized comprehensive revisions to the rules governing practice and procedure before the Court. The REVISED RULES OF APPELLATE PROCEDURE (the "Revised Rules") became effective on December 1, 2010. The Revised Rules govern appeals from final judgments entered by a circuit court on or after December 1, 2010, and petitions for extraordinary relief filed with the Supreme Court on or after December 1, 2010.

3 This GUIDE will discuss filing an APPEAL from a circuit court judgment; it does not apply to petitions for extraordinary relief. The Revised Rules contain a number of procedural changes and require actions that differ from what the former rules required. This GUIDE is intended to help filers, court staff, and interested parties to understand and comply with the new process. This GUIDE is not legal authority or a substitute for the requirements found in the Revised Rules. INITIATING AN APPEAL HIGHLIGHTS OF THE NEW PROCESS The Revised Rules create two distinct milestones in a new process for initiating an APPEAL : docketing the APPEAL and perfecting the APPEAL . Under the former rules, an APPEAL was initiated in the circuit clerk's office within four months of the date of the circuit court judgment being appealed. Prior to that deadline, however, transcripts had to be requested within thirty days, and a notice of APPEAL was required in all criminal cases within thirty days.

4 The Revised Rules incorporate these preliminary matters into a first stage that applies to all appeals from circuit court. ONLINE Download the Revised Rules, get sample documents, use fill-and-print forms and other resources online at the Appellate Revisions page of the Court's website: GUIDE TO PREPARING AN APPEAL FROM A CIRCUIT COURT DECISION 2 Under the Revised Rules, an APPEAL is docketed by the timely and proper filing of a Notice of APPEAL with the Clerk of the Supreme Court within thirty days of the entry of the judgment that is being appealed. The Notice of APPEAL contains basic information about the case and the issues to be presented, along with a listing of the transcripts requested. When the Notice of APPEAL is timely and properly filed, the Clerk will assign a case number and the case will be docketed. Shortly thereafter, the Court will issue a Scheduling Order that will contain all the necessary deadlines that apply to the next stage: perfecting the APPEAL .

5 See Revised Rule 5(d). The Revised Rules require an APPEAL to be perfected according to the date set forth in the Scheduling Order. This date will normally coincide with the statutory deadline for appeals, unless the deadline has been extended by order. In order to perfect an APPEAL , the petitioner must file a brief with the Clerk of the Supreme Court, and must file an appendix record, unless the Court has entered an order that allows the petitioner to proceed on a designated record. The process for docketing and perfecting an APPEAL is summarized in the diagram below. Statutory Deadline (4 Months in most cases) Appealable Order Entered Notice of APPEAL Filed APPEAL Docketed 30 days Scheduling Order Entered APPEAL Perfected The Scheduling Order will set forth the deadline for the transcript, motions, and other preliminary matters. It will also contain the deadline for perfecting the APPEAL .

6 The deadline for perfecting the APPEAL may be extended in the Scheduling Order to allow sufficient time following completion of the transcript. Petitioner's Brief and Appendix Filed GUIDE TO PREPARING AN APPEAL FROM A CIRCUIT COURT DECISION 3 The Revised Rules change several aspects of the filing process itself. Those changes are covered in detail throughout this GUIDE . The following points about filing generally and filing by facsimile are worth noting carefully. IMPORTANT POINTS ABOUT FILING All filings are made with the Clerk of the Supreme Court, not with the Clerk of the Circuit Court. In order to meet deadlines, filings must be received by the Clerk of the Supreme Court on or before the date they are due. File your documents in person, by mail, or by commercial courier with: Office of the Clerk Supreme Court of Appeals of west Virginia State Capitol Building, Room E-317 1900 Kanawha Blvd. East Charleston, WV 25305 Filing by facsimile is limited Revised Rule 38(e) limits the instances in which filing by facsimile is allowed: In accordance with Rule 12 of the west Virginia Trial Court Rules, the Clerk may permit certain filings required under these Rules to be made by facsimile transmission.

7 Even with the consent of the Clerk, documents necessary to docket or perfect an action before the Court may not be filed by facsimile unless accompanied by a motion for leave to file by facsimile, setting forth good cause. In extraordinary circumstances, the Clerk may provide prior consent to exceed the twenty page limit for facsimile filings set forth in Trial Court Rule (c). If a facsimile filing is accepted by the Clerk, the Clerk will provide by return facsimile a notice of acceptance, and a statement of the photocopying charges that apply under Trial Court Rule (l). If a facsimile filing is accepted by the Clerk, the filing of the original shall not be required unless ordered by the Court or directed by the Clerk. (Emphasis added). Facsimile filings should be limited to routine motions and brief correspondence. The fax number is (304) 558-3815. The phone number is (304) 558-2601. GUIDE TO PREPARING AN APPEAL FROM A CIRCUIT COURT DECISION 4 Use these charts to assist with filing and serving the correct number of documents.

8 Completed Forms + All Required Attachments FILE the Original and 5 Copies with the Supreme Court Clerk SERVE 1 Copy on each party, each court reporter, and the circuit clerk Notice of APPEAL Petitioner's Brief 40 PAGE LIMIT + Appendix NO PAGE LIMIT FILE the Original and 10 Copies with the Supreme Court Clerk SERVE 1 Copy on each party to the APPEAL DOCKETING THE APPEAL SERVE 1 Copy on each party to the APPEAL FILE the Original and 1 Copy with the Supreme Court Clerk PERFECTING THE APPEAL Respondent's Brief 40 PAGE LIMIT Reply Brief 25 PAGE LIMIT FILE the Original and 10 Copies with the Supreme Court Clerk SERVE 1 Copy on each party to the APPEAL SERVE 1 Copy on each party to the APPEAL FILE the Original and 10 Copies with the Supreme Court Clerk RESPONSIVE BRIEFS GUIDE TO PREPARING AN APPEAL FROM A CIRCUIT COURT DECISION 5 PREPARING and FILING THE NOTICE OF APPEAL Is a Notice of APPEAL Required? In order to APPEAL a circuit court final order entered on or after December 1, 2010, a Notice of APPEAL must be filed with the Supreme Court Clerk.

9 The Notice of APPEAL contains basic information about the case and informs the Court and the other parties about the nature of the issues on APPEAL and whether transcripts have been requested. The Notice of APPEAL is required in civil and criminal cases, as well as appeals in abuse and neglect proceedings. See Revised Rule 5(a)-(b) and Rule 11(a)-(b). When Is The Notice Of APPEAL Due And Where Is It Filed? The Notice of APPEAL is due within thirty days of the date that the judgment being appealed was entered in the circuit clerk's office, which is sometimes different than the date the order was signed by the judge. A signed original and five copies of the Notice of APPEAL together with all the necessary attachments must be filed with the Clerk of the Supreme Court by the deadline. This is a change from prior practice, in which documents to initiate an APPEAL were generally filed in the circuit clerk's office of the county where the final order was entered.

10 In order to be timely, documents must be received by the Clerk on or before the due date. Under Revised Rule 38(g), the mere act of placing a brief or other paper in the mail on or before the due date does not constitute a proper filing. If it is necessary to seek an extension of time to file a Notice of APPEAL , the Revised Rules require that a motion for leave be filed, showing good cause. See Revised Rule 5(b) and 11(b). If a Notice of APPEAL is filed late, the petitioner must file a motion for leave to file out of time. Facsimile filing of a Notice of APPEAL is not permitted under Revised Rule 38(e), unless the facsimile filing is accompanied by a An APPEAL is docketed by filing a Notice of APPEAL with the Clerk of the Supreme Court, within 30 days of entry of the circuit court judgment being appealed. GUIDE TO PREPARING AN APPEAL FROM A CIRCUIT COURT DECISION 6 motion for leave to file by facsimile, setting forth good cause.